No. 214 March Term, 1977, Appeal from the judgment of sentence of the Court of Common Pleas of Erie County, No. 1830, 1830-1 of 1976 Criminal Division
Michael J. Veshecco, Erie, for appellant.
Robert H. Chase, Dist. Atty., Frank J. Scutella, Shad Connelly, Asst. Dist. Attys., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the decision of this case. Pomeroy, former J., did not participate in the decision of this case. Manderino, J., concurs in the result.
This is an appeal*fn1 from a judgment of sentence of five and one-half to twenty years imprisonment entered after a non-jury trial finding appellant guilty of murder of the third degree. See 18 Pa.C.S.A. § 2502(c) (Supp.1978-79).
On the afternoon of August 12, 1976 appellant reported for work at his regular place of employment, the Riley Stoker plant in Erie, Pennsylvania. Appellant worked the second shift (3:30 p. m. to 12 a. m.). At 10:30 p. m., shortly before the end of the second shift, appellant and several of his fellow employees began drinking beer that had been delivered to them by the wife of one of appellant's co-workers. By midnight appellant had consumed about six, sixteen ounce bottles of beer. Just after midnight appellant and two of his drinking friends went to the nearby home of one of these friends and continued drinking until approximately 2:30 a. m., August 13, 1976. During the period of this visit appellant ate a sandwich and drank four or five twelve ounce bottles of beer. At about 3:00 a. m., appellant's host drove him home.
Shortly after appellant arrived home, he became verbally abusive towards his mother which resulted in her slapping him. At that point he became violent and chased his mother outside and around the house twice; appellant did not physically harm his mother. During the chase, appellant was screaming and growling. Having wrapped a jacket around his hand, appellant broke one of his neighbor's windows, pounded on the neighbor's air conditioner, and then ran down the street, stopping occasionally to pound or punch parked cars. Four houses down the street, appellant went to the side entrance to the home of the victim, Mr. Lampe, tore the screen door off of its hinges, broke the glass storm door, and entered the Lampe house. Once inside, appellant accosted Mr. Lampe and a struggle ensued; Mr. Lampe was
on top of appellant when another neighbor entered the room and helped Mr. Lampe restrain appellant. While Lampe and the neighbor restrained appellant, appellant continued to struggle, at one point biting Mr. Lampe. Moments later police arrived at the Lampe residence, in response to a call from another neighbor. Just as the police entered the Lampe house, Mr. Lampe collapsed. One officer handcuffed appellant and took him out of the room and two other officers administered cardio-pulmonary resuscitation (CPR) to Mr. Lampe, who was then unconscious. Minutes later rescue squad personnel transported Mr. Lampe, via ambulance, to a nearby hospital emergency room. Subsequent CPR proved unsuccessful, and Mr. Lampe died without regaining consciousness. It was later determined that Mr. Lampe, who was sixty-three years of age, died of acute cardiac failure due to a pre-existing arteriosclerotic heart disease which was aggravated by the severe stress of his struggle with appellant.
At 5:00 a. m. the same morning, blood and urine samples were taken from appellant; analysis showed a blood alcohol content of .207 percent. At about twelve o'clock noon on the previous day, August 12, 1976, appellant had taken one capsule of Eskatrol Spansule, an amphetamine-based diet pill prescribed by appellant's physician; the specimens submitted for laboratory analysis were of insufficient quantity to permit detection of the presence or level of this amphetamine in appellant's system. However, medical testimony indicated that appellant was still intoxicated at 5:00 a. m. on the 13th of August.
The major thrust of appellant's argument is that the record fails to establish that he was either sane or sober, so as to be criminally responsible for his conduct. In conjunction with his intoxication claim, appellant requests that we consider the constitutionality of section 308 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 308 (Supp.1978-79). We shall first address the ...